Surveillance disclosure battle heats up

A legal battle over surveillance pitting the U.S. government against Google and Microsoft intensified on Friday — and the two tech titans requested extra time to convince a court they should be able to disclose more data about NSA orders.

Both companies have asked the Foreign Intelligence Surveillance Court for a green light to recalibrate their original arguments, two sources with knowledge of the matter told POLITICO, noting the Justice Department concurred with the extension. The legal maneuvering comes a day after the Obama administration announced new transparency measures that Google and Microsoft each quickly decried as insufficient.

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“With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely,” said Brad Smith, general counsel at Microsoft, in a blog post published just hours before the company secured the extension. “And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way.”

The extension gives Google and Microsoft 10 days to revise their arguments, the sources said. The DOJ did not comment for this story.

The two companies have been making a high-profile push for transparency to combat what they call a misperception, sparked by Edward Snowden’s leaks, that they offer the government unlimited access to their users’ information. They want to publish more granular data about the surveillance requests they receive from the NSA and other agencies.

The government had been negotiating with the companies, seeking six extensions from the surveillance court as the talks continued. But Thursday’s announcement by Director of National Intelligence James Clapper — that the administration would would release its own annual summary of orders under the Foreign Intelligence Surveillance Act, or FISA — signaled a change. Microsoft, Google and others welcomed the move but said it falls far short on transparency.

“We believe it’s possible to publish these figures in a manner that avoids putting security at risk,” Smith wrote. “And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete.”

Shortly after Clapper’s announcement, a Google spokesperson described the government’s new disclosure policy as “a step in the right direction” but added the company believes “there is still too much secrecy around these requests and that more openness is needed.”

Kevin Bankston, senior counsel at the Center for Democracy & Technology, told POLITICO the group “appreciates any new information from the government about the NSA’s surveillance activities,” but he said CDT is “extremely disappointed” about its limitations. For example, the reports appear unlikely to include information about the number of individuals affected by surveillance, he said.

To Bankston, it’s important for Google and Microsoft to be able to release their own data as a “check” on the government’s information. “Trust but verify,” he told POLITICO, emphasizing the need for a new disclosure law so that companies don’t have to take their cases individually to court.

Others, like Facebook, also jumped into the fray. “We are deeply disappointed that despite months of negotiations and the efforts of many companies, the government has not yet permitted our industry to release more detailed and granular information about those requests,” said the company’s general counsel, Colin Stretch. “While DNI Clapper’s announcement that the NSA will begin releasing additional information about the number of national security requests they make on an annual basis is a good step, it is not nearly enough.”

From here, the Google and Microsoft fight is far from over: Even after they file their revisions to the surveillance court, the DOJ must then respond.

Should the companies lose, they could take the case to the FISA equivalent of an appeals court, or they could try to press their case in federal district court. Keeping the case alive might offer some public-relations benefit to Google and Microsoft, which have been pilloried over their relationship with Washington’s top spy agencies.

“If the companies pursue litigation, they can say to the world, ‘This is how serious we are. We are using our time and money and suing the government,’” explained Robert Chesney, law professor at the University of Texas at Austin.